Last week, the World Economic Forum released the 2012 Global Gender Gap Report.  It examined the gender gap in 135 countries based on four main criteria:

• Economic participation and opportunity, examining the wage gap and the ratio of men to women in high-paying jobs
• Educational attainment, examining achievement as well as access to all levels of education
• Health and survival, examining life expectancy and mortality rates
• Political empowerment, examining the ratio of women to men in government

The United States was ranked #17 out of 135.

The fact that women lag behind men in the United States may seem surprising because the life expectancy and mortality rate gaps here have nearly closed, as has the gap for education.  The areas where American women are seriously behind men are in politics and in the workplace.

Gender Pay Gap Starts After Graduation

Additionally, the American Association of University Women released its own report in September, “Graduating to a Pay Gap.”   It found that women who graduate from college are less likely than men to be employed one year after graduation, and those who are employed will make 82 cents for every dollar a man earns.

Key Findings

Because women make less immediately post graduation, their student loan burden is greater than for men.  This means that a higher portion of women’s earnings goes toward repaying loan debt rather than to living expenses or savings.

The impact of the pay gap is felt not only right after graduation, but throughout a woman’s life.  Because women make less than men throughout their careers, women are continually at a financial disadvantage for the entirety of their financial lives.

What Can Employers Do?

• Create transparency in pay structures
• Promote clarity in personnel evaluations
• Assess your company’s salaries by gender to determine any disparities, and take steps to correct them
• Learn about implicit biases at www.implicit.harvard.edu

What Can Employees Do?

• If you must take out a college loan, get as much information as possible on federal options over more risky private loans, and seek the lowest interest rates
• Choose your college major and occupation carefully to maximize earning potential
• Learn about average salaries for your occupation so you know what you’re worth
• Be willing to negotiate for better pay and benefits

If you feel that you have experienced workplace discrimination because of your gender, you may file a complaint or a lawsuit against your employer. Contact an experienced plaintiff’s attorney for guidance.

Workplace retaliation is defined as actions taken by an employer, supervisor, or manager that adversely affect an employee’s job in response to that employee’s claim of harassment, discrimination, or acts of whistleblowing.

These actions can include firing, demotion, reduced access to training and promotion, unjustified negative performance reviews, and more.  However, both Federal and California law provides protections to employees against such retaliatory acts.

Increased Retaliation Lawsuits

Last month, a study was released by Navex Global that covered incidents of workplace retaliation as reported by ethics and compliance officers, human resources, internal auditors, legal counsel, and other senior executives.  It predicts a rise in lawsuits against employers who are accused of retaliating against whistleblowers.

What You Need to Know

In the state of California, to be protected by law, you must be a “covered individual” and have performed a “protected activity.”  It is important to know what these are:

• Covered individual: an employee who has voiced opposition to illegal practices, participated in legal proceedings or asked for accommodations connected to employment discrimination of the following kinds: race, color, sex, religion, national origin, age, or disability.
• A covered individual is also someone closely connected with or related to someone who has participated in this type of activity.  For example, it is against the law to fire or demote someone whose spouse has been involved in a discrimination lawsuit.
• Protected activity: any opposition to illegal practices, such as discrimination based on race, color, sex, religion, national origin, age, or disability.
• Additional protected activities include reasonable requests for accommodations for disability or religious observance.

Retaliation in the U. S.

Earlier this month in Mira Loma, California, more than 30 workers at NFI, a warehouse, submitted claims against their employer for workplace retaliation.  In September, those workers had participated in an organized walk-out protesting unfair working conditions.  The workers claim that subsequently, they were retaliated against with reduced hours and lowered wages.

In East St. Louis, Illinois, the Comprehensive Behavioral Health Center is being sued by the EEOC on behalf of a former employee with multiple sclerosis.  She claims that she had asked her employer for accommodation for her disability and was refused.  When she complained, she was laid off and denied rehiring.  The OBHC hired a less qualified person to fill the position.

These types of workplace retaliation seem fairly obvious, but when we see that claims are increasing nationwide, it is important to be aware of your rights.

If you believe that you have suffered unlawful retaliation from your employer, contact an experienced plaintiff’s employment lawyer for more guidance.

Previously, I discussed the basic ways in which employees’ lost earnings are calculated by labor experts.  Today, I’ll take you through what happens with those calculations when the complication of time is added to the equation.

Losses Sustained Over Time

Sometimes the losses people sustain in employment discrimination are not sustained all up front.  If you’re denied a promotion, your earnings may be lower for a longer time and possibly for the remainder of your career relative to what you might have earned had you gotten the promotion.

Experts have looked at this and studied workers who’ve lost their jobs, and found that it can take people as long as 5-7 years or longer to find a job that pays the same as the job they lost.  This means that 5 years after your layoff, you are potentially still being paid less than you were at the job you lost.

Inflation Compounds Your Loss

But let’s suppose that difference is $10,000 annually that you would have earned at the job you lost.  Is that the same as losing $10,000 today?  No!  The present value is not the same as the future value, and the reason it’s not the same is because of inflation.  Inflation decreases the value of money over time.

In addition to protecting yourself against inflation, you want to get some kind of compensation for postponing your access to the money – this is interest.  The calculation of interest is an adjustment for what experts call the time-value of money.

Calculating the Time-Value of Money

Let’s look at a very simple example:

Begin with the assumption that interest rates are 5%.  Jenny has $100.  If Jenny puts that $100 into a savings account that accumulates 5% interest, she will have $105 in a year’s time.  Now, let’s turn put that into a discrimination problem.

Jenny is employed by Mark.  Mark discriminated against Jenny and fired her, and the judge has determined that she lost her following year’s salary.  For simplicity’s sake, we’ll assume that her future salary would have been $105.  What amount of money must Mark compensate Jenny now to be the current equivalent of that future $105?  The answer is $100.

Economic Losses Today are Calculated as Future Values

These calculations of economic loss are future values.  In a settlement, the employer is expected to pay immediately.  The future amount is worth less today because you can take the money today and put it in the bank and earn interest on it.

These calculations get more and more complicated when you add in benefits, annuities, perpetuities, and other forms of compensation extraneous to basic wages.  However, this is why many times the money awarded in discrimination lawsuits seems so high: it’s intended to compensate the victim not only for actual lost wages, but also for the time it takes them to make up for those wages in their next job.  These calculations are designed to right the entire wrong done to the plaintiff when the employer discriminated.

If you’ve been discriminated against at your job, you are entitled to file a wage claim, a discrimination complaint, or you may file a lawsuit against your employer to recover your lost earnings.  When you go to court, your attorney must prove to the judge or jury that you have been the victim of discrimination, and will allege that your earnings were lower than they should have been.  

If you decide to sue your employer for discrimination, contact an experienced plaintiff’s employment lawyer for more guidance.

The U.S. has an “employment at will” doctrine, which means you can be fired for virtually any reason: even no reason at all.  Your employment can be terminated if the employer doesn’t like the way you part your hair, the way you decorate your desk, or just because he doesn’t like you.

How Does U.S. “Employment at Will” Doctrine Protect Employees?

However, there are a few areas where employees do have protection under the law.  It is illegal to fire or deny promotions to someone based on race, gender, or age, and in the state of California, there are many additional protections for employees.  So if you’ve been discriminated against in this way at your job, you are entitled to file a wage claim, a discrimination complaint, or you may file a lawsuit against your employer to recover your lost earnings.  When you go to court, your attorney must prove to the judge or jury that you have been the victim of discrimination, and will allege that your earnings were lower than they should have been.

 How Do I Determine My Lost Earnings?

There are many ways of determining your lost earnings.  Typically, an expert such as a labor economist will be hired to calculate what you could have earned if your employer had not denied your promotion or terminated your employment.  The economist will examine your old wage, the wage you would have received had you been promoted or retained employment, as well as take into account how long you were forced to spend looking for a new job.  In some cases, the time you spend looking for a new job will be compounded by weak job markets and fewer comparable available jobs.

Circumstances affecting your lost earnings calculation:

• You were fired and have no income
• You were fired and had to take a lower paying job
• You were denied promotion, so you are receiving less $ than you deserve
• You were denied a raise, so you are receiving less $ than you deserve

Example of “Comparables”

Sometimes the expert will examine something called “comparables.”  If your employer denies you the job or promotion and gives it to someone else instead – that’s a comparable.  Typically, you have to argue that the person who got the job instead of you is comparable to you, therefore you should have gotten the job. Then it’s very easy for the expert to calculate what you lost: if the other person got $100,000, and you only got $90,000, then you lost $10,000.

You are still expected to mitigate your loss.  If you do nothing to alleviate your lost earnings, like if you don’t take an available job in your field that might have different or less pay, then it’s unlikely the judge will say that you deserve the full amount because you failed to take reasonable steps to get another job.  If you can document that you’ve looked for a job and can’t get one, then that documentation will be very important to your case.

The good news is that you are not obliged to take a job for which you are overqualified.  If you lose a teaching job, you don’t have to take a job flipping burgers.  You are only expected to mitigate by taking a job that’s suitable and appropriate for you.

If you decide to sue your employer for discrimination, contact an experienced plaintiff’s employment lawyer for more guidance.

Have you ever noticed who the managers are when you shop at Wal-Mart or Costco?  If they were women, count yourself lucky to have witnessed what may be a rarity, according to two recent class-action lawsuits.

Gender Discrimination: Costco and Wal-Mart

Costco and Wal-Mart are each being sued for gender discrimination by their female employees in California.  Each lawsuit claims that gender discrimination at these nationwide chain stores was widespread, and resulted in women being denied promotions and raises.

Wal-Mart Discrimination Lawsuit

In the original Wal-Mart suit, about 1.5 million women were represented, and this case made its way through the courts for nearly 11 years until it finally arrived at the US Supreme Court in June of last year.  The Supreme Court rejected the suit on grounds that the allegations were too varied and could not prove a nationwide pattern of discrimination.

However, US district judge Charles R. Breyer denied Wal-Mart’s request to dismiss the suit.  Additionally, he noted that despite the Supreme Court’s rejection of nationwide class status, complainants in smaller groups might be eligible for class certification.  Now, separate gender discrimination suits against Wal-Mart have since been filed in all but two states – Vermont and Montana.

Costco Discrimination Lawsuit

Close to 700 women are represented in the Costco gender discrimination suit, far fewer than in the Wal-Mart suit, and only in California.  This suit achieved class status more easily because the complaints were limited: it claims that women were denied promotions to only two levels, assistant and general manager of retail stores.

It remains to be seen if these more focused plaintiff groups will prevail.  While narrowing the group of complainants may enable class status to be conferred, it does not guarantee a win.  We will have to keep our eyes on the news for what may well turn out to be cases that change the way two major American companies conduct their employment practice.

If you are a California employee or job seeker and believe that you were subjected to workplace discrimination, you must file a formal complaint with the Department of Fair Employment and Housing (DFEH) or the United States Equal Employment Opportunity Commission (EEOC) before you file any private lawsuit in court.

An employer who becomes subjected to your discrimination complaint would be investigated by the agency that received the complaint. If the investigating agency determines that the employer indeed violated the law, you may receive permission to file a lawsuit from the agency. Contact an experienced plaintiff’s employment lawyer for more guidance.

Are you an employee in the state of California?  If you are, and if you believe that your rights, as they relate to your pay, have been violated by your employer, you are entitled to file a wage claim.  Before you review the information on how to file a California wage claim, do you understand the 10 common wage rights to California employees?

What Is a California Wage Claim?

Essentially, a wage claim is a demand that you make to the state for your employer to pay you any wages that are owed to you.  This includes:

• Regular unpaid wages
• Unpaid overtime, commission, or bonus wages
• Final paycheck (if not received)
• Unused vacation hours if not paid at time of termination
• Unauthorized paycheck deductions
• Unpaid business expenses
• Employer did not provide meal/rest period as per labor laws
• Penalties for failure to pay minimum wage, payment over 30 days late
• Penalties for employer’s failure to allow inspection or copying of payroll records within 21 days of request

How to File a California Wage Claim in 3 Easy Steps

1. Gather any documentation you have about wages owed to you, including payment contracts, notes, or messages from your employer about intent to pay.  Keep these in a safe place.  If you are a union member, include your collective bargaining agreement.  Make a copy for your claim, and keep the originals in a safe place.
2. Go to the website of the California Department of Industrial Relations, and download and print form DLSE 1, which is an Initial Report or Claim form.  Answer all the questions as accurately as possible. There may be additional forms that apply to your case, so read the options carefully to select the correct forms.  For example, if your claim involves commission pay, you will also need to complete DLSE form 155.  If your claim involves vacation wages, fill out the DLSE Vacation Pay Schedule form.
3. Place your forms and supporting documentation in an envelope and mail or deliver to the appropriate processing office.  You can find the closest location here.

An initial investigation of your claim will begin no more than 6 weeks after your claim has been filed.  At that point, you will be contacted by a deputy with recommendations for a hearing or additional investigation.

If you decide to file a lawsuit against your employer, make sure you contact an experienced employment attorney for advice and guidance.

Labor and employment rights in California comprise a seemingly endless list of laws that affect wages, hours, working conditions, and benefits.  There are specific laws just for state and local employees, farm workers, government and court employees, educational employees for kindergarten through high school, and different laws for colleges and universities.  There are laws covering disability and retirement insurance, victims of domestic abuse, occupational health, job training, and more.

According to the state of California’s Employment Development Department, there are over 18 million people in the state’s workforce.  With so many workers in so many different jobs and industries, the legal system has been challenged with the task of ensuring the safety and fair treatment of all workers. Labor and employment law is evolving and changing day by day, but many worker rights have been standard for years.

A more comprehensive overview of these laws can be found here.  However, for your convenience, I’ve created this helpful list of ten of the more common rights about wages that people in the state of California need to know.

At your place of employment, you have the right to:

1. Payment for your work at a rate of no less than the minimum wage, which is currently $8.00 per hour.
2. Separation of wage and tips. Your tips may not be counted toward the minimum wage.
3. Overtime pay after 8 hours of work, even if the time is unauthorized.
4. Payment of overtime pay no later than the next regular payroll period after you worked those hours.
5. Regularly scheduled pay on designated paydays, no fewer than twice per each calendar month.
6. Be paid all wages, including any vacation time, immediately at time of employment termination.
7. Be paid even if you forget to submit your timecard.
8. Read your payroll records kept by your employer within 21 days of your request.
9. Accrued vacation pay. If your employer offers paid vacation, any accrued pay cannot be forfeited or revoked at the end of the year or even if you are fired.
10. A rest period of 10 minutes for every four hours of work, for nonexempt employees.

What if your rights are being violated?  If you believe that your employer has paid you less than minimum wage, deducted your tips from the hourly minimum, failed to pay you overtime, or abrogated your rights in any other way, you may file a Wage Claim with the California Division of Labor Standards Enforcement.

If your employer has indeed broken the law, you may file a lawsuit against your employer. Contact an experienced plaintiff’s employment lawyer for more guidance.

Racial discrimination in the workplace has been a common complaint for decades, and despite laws protecting workers, this form of employment bias is not abating.  Between 2001 and 2011, the number of race-discrimination charges reported by the U.S. Equal Employment Opportunity Commission (EEOC) has risen over 22%.  Last year, of all discrimination charges compiled by the EEOC, 35.4% were race discrimination (source: EEOC).

Racial discrimination can arise in a variety of ways.  The obvious forms of discrimination and harassment are racial slurs, derogatory statements based on race or skin color, and the display of offensive images or symbols.  More insidious forms of race discrimination extend to unfair hiring practices or seeking out job applicants from a certain race, pay and benefit differences based on race, layoff and training decisions based on race, and preferential treatment to people from a certain race.  Currently, workers are protected by Title VII of the Civil Rights Act of 1964, which states that:

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

These laws cover acts of discrimination, harassment, or bias practiced by employment agencies, labor organizations, and training programs.

How to File a Charge of Discrimination with the EEOC

If you believe you have been discriminated against based on your race, you have the right to file a Charge of Discrimination with the EEOC.  You have only 180 days from the date of the first act of discrimination to file such a charge, so you must be timely about noting any possible discrimination at your place of work.  If there is a state or local law that also prohibits discrimination on the same basis, you may have up to 300 days to file a charge.

To file a Charge of Discrimination, you may do so in personal at any of the EEOC’s field offices or by mail.  The information you will need to provide is as follows:

1. Your name, address, and phone number
2. Name, address and phone number of the employer you want to file against
3. Number of employees at the employer
4. A description of the discrimination you experienced and when it occurred
5. An explanation of why you believe it was discriminatory
6. Your signature – without a signature, the claim cannot be investigated by the EEOC

Once your Charge has been submitted, you and your employer will both receive a copy of the Charge, and the EEOC will begin to investigate your claim.

If the EEOC finds that the law has been broken, there are several possible courses of action.  The EEOC may recommend that you and your employer try to resolve the matter through mediation.  If this fails, the EEOC may decide to sue the employer on your behalf.  If they do not sue, you will receive a Notice-of-Right-to-Sue, which allows you to file a lawsuit against your employer.

If you decide to sue your employer for racial discrimination, contact an experienced plaintiff’s employment lawyer for more guidance.

As a domestic worker, you leave your own home and children behind to care for someone else’s home and children.  You care for the elderly, find lost items, bring your charges to doctor appointments, scrub toilets, pick up toys, wash dishes and laundry, bandage knees, push children on swings, cook and serve meals, and more.  You are an essential part of your employer’s household, and that family is dependent upon you for your assistance.  But what happens if your hard work is taken for granted, underpaid, or abused?

Thousands of domestic workers in the state of California have been subject to many abuses such as gross underpayment, withheld overtime pay, and inadequate rest for sleeping and meals.  But on August 30, the California State Legislature passed the Domestic Workers Bill of Rights (AB 889).  All that remains is for Governor Jerry Brown to sign it into law.

How the Law Protects You

This new law protects you by granting you 5 rights.  You are entitled to:

• overtime pay
• 30 minute breaks for every 5 hours of work
• 10 minute breaks for every 4 hours of work
• 8 hours uninterrupted sleep for live-in workers or those working 24-hour shifts
• cook your own food in your employer’s kitchen for every 5 hours of work

This is truly a historic moment, as over 200,000 domestic workers are currently employed in California.  These are basic rights already enjoyed by employees who do not work in private homes.

Filing a Workplace Discrimination Lawsuit

If you are a California employee or job seeker and believe that you were subjected to workplace discrimination, you must file a formal complaint with the Department of Fair Employment and Housing (DFEH) or the United States Equal Employment Opportunity Commission (EEOC) before you file any private lawsuit in court.

An employer who becomes subjected to your discrimination complaint would be investigated by the agency that received the complaint.  If the investigating agency determines that the employer indeed violated the law, you may receive permission to file a lawsuit from the agency.  Contact an experienced plaintiff’s employment lawyer for more guidance.

In Filing a California Discrimination or Retaliation Complaint – Part 1 I addressed your rights as an employee on issues involving your working conditions and the process of filing a complaint. In this second article in the two-part series, I discuss how a determination is reached on the complaint.

The Hearing

The hearing is an informal, investigative proceeding conducted by a hearing officer to obtain more facts relevant to the case. At least five days before the scheduled hearing, the employer and employee or job applicant will each receive a copy of the summary of findings prepared by the investigator containing the facts he or she found during the investigation. Either side may bring an attorney, union representative or other person of their choice to represent them at the hearing.

The Labor Commissioner, employer, employee or job applicant can each subpoena witnesses and documents for the hearing. The parties should contact the hearing officer who will issue all subpoenas reasonably necessary. The hearing officer may refuse to issue unnecessary subpoenas.

The hearing officer will file the findings of facts and conclusions with the Labor Commissioner after the hearing. The Labor Commissioner will then make a determination on the complaint.

Appeal Rights

Either party may seek review of the Labor Commissioner’s determination by filing an appeal with the Director of the Department of Industrial Relations within ten (10) days of the date of service. The Director will provide all other parties with a copy of the appeal, allowing for an opportunity to respond.

Questions

If you have any questions about this process, please feel free to contact me.

Related post: Filing a California Discrimination or Retaliation Complaint – Part 1